Protecting Pre-72 Sound Recordings

Background

Sound recordings were first brought within the scope of federal copyright protection beginning in 1972. Sound recordings made before February 15, 1972, are protected by various state laws. State law protection for these legacy recordings will continue until 2067, at which time all state protection will be preempted by federal law. Even though these recordings are protected by state law, some digital music services have been using them without paying royalties or otherwise getting permission. SoundExchange estimates that non-payment for pre-1972 recordings cost artists and labels well over $60M in royalties in 2014. In 2015, we expect that number will grow to over $70M.

Legislative Action

In mid-2014, SoundExchange launched Project72, a campaign to ensure  fair pay for artists who recorded their music before 1972. One result of the campaign was legislation introduced in the House of Representatives during the 113th Congress. That bipartisan legislation, called the RESPECT Act, would have required digital services to pay for all the music they play, regardless of the year it was recorded. In the 114th Congress, the RESPECT Act is now part of the Fair Play Fair Pay Act, H.R. 1733, introduced by Representatives Jerrold Nadler (D-NY) and Marsha Blackburn (R-TN). To learn more about Project72, visit the campaign website at Project-72.org.

Legal Action

In 2014, several copyright holders, including Flo & Eddie of The Turtles (“Happy Together,” “She’d Rather Be With Me”) and a group of major and independent record labels, took legal action to defend their rights in their pre-1972 sound recordings under state statutory and common law. They allege that SiriusXM and Pandora refused to license and pay royalties for the use of pre-1972 sound recordings, violating state laws. SoundExchange filed its own lawsuit against SiriusXM as well, which separately addresses Sirius XM’s underpayment of royalties under federal law.

A brief description of each of these lawsuits, and links to some of the relevant documents, are below:

The Turtles Lawsuits – Flo & Eddie, of the classic rock band The Turtles (“Happy Together,” “She’d Rather Be With Me”) filed class action lawsuits on behalf of all copyright owners of pre-1972 sound recordings whose works are played by SiriusXM. The lawsuits were filed in 3 states and alleged statutory and common law copyright infringement, as well as other claims. Read The Turtles complaints filed in California, New York, and Florida.

On Sept. 22, 2014, the United States District Court for the Central District of California, which presided over the California state law case, ruled in favor of Flo & Eddie on all claims related to the public performance of pre-1972 sound recordings.  The court held that Sirius XM infringed Flo & Eddie’s rights by playing their recordings without a license. Read this important decision here.

Weeks later, the United States District Court for the Southern District of NY followed suit, ruling that there is a performance right under New York state law that covers pre-1972 sound recordings and requiring SiriusXM to show cause that there was any remaining issue of material fact left to be decided. Read that decision here.

The Record Label Lawsuit – Capitol Records, Warner Music Group, Sony Music Entertainment, UMG Recordings, and ABKCO Music & Records, who collectively own sound recordings from classic acts such as the Beatles, the Rolling Stones, Marvin Gaye, Aretha Franklin, Simon & Garfunkel, and Louis Armstrong (among many others) filed a lawsuit in California state court alleging infringement of California statutory and common law copyright, as well as other claims. Read the complaint here.

Read more: